Yakubhai Gulam Hussain vs The State Of Mah
2017 Latest Caselaw 6548 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION


                            WRIT PETITION No. 1733 of 1995
Yakubbhai Gulam Husain                                     ]
of Bombay, adult, Indian                                   ]
Inhabitant, Residing at Chawl                              ]
No. 18, Room No. 140, Transit Camp                         ]
Reclamation, Bandra (West)                                 ]
Bombay - 400 050                                           ]       ... Petitioner


              Versus
1.            State of Maharashtra                         ]
              Government Pleader, High Court               ]

2.            The Maharashtra Housing & Area              ]
              Development Authority, the Authority        ]
              constituted under the Maharashtra           ]
              Housing & Area Development Act 1976,        ]
              having their Office at Griha Nirman Bhavan, ]
              Bandra (E), Bombay - 400 051.               ]

3.            The Presdident,                              ]
              The Maharashtra Housing & Area               ]
              Development Board, A Board constituted       ]
              under M. H. & A. D. Act 1976 and having      ]
              his Office at Griha Nirman Bhavan,           ]
              Bandra (E), Bombay - 400 051.                ]       ... Respondents

                                             ...

Mr. Devendra Sharma for the Petitioner.
Mr. K. R. Trivedi, AGP for the Respondent State.

                             CORAM   :   A. S. OKA &
                                         SMT. VIBHA KANKANWADI, J. J.

DATE ON WHICH THE JUDGMENT IS RESERVED: 04/08/2017
DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 28/08/2017




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JUDGMENT (PER: SMT. VIBHA KANKANWADI, J)

1] The Petitioner has invoked the Writ Jurisdiction of this Court under Section 226 of the Constitution of India for issuance of Writ in the nature of Mandamus directing the Respondents to forthwith allot and handover the possession of alternate accommodation to the Petitioner.

2] The factual matrix leading to the petition is that the Petitioner was a tenant of Room No.16, Bawla Building situated at 82-92 at Bara Imam Road, Mumbai. The said old building was in dilapidated condition and therefore, the 2nd Respondent had issued a notice to the Petitioner under Section 77 (i) (b) of the Maharashtra Housing and Area Development Act, 1976 (for short "the MHAD Act") on 30 th May 1979 calling upon the Petitioner to vacate the premises. In pursuance to the said notice, the Petitioner had vacated the said tenement. The 2 nd Respondent had directed the Petitioner to deposit a sum of Rs.101/- as Security Deposit for the allotment of premises in transit camp. Accordingly, the Petitioner deposited the said amount, on 20 th June, 1979. After he had deposited the said amount and on his application, the Petitioner was alloted the Room No. 63 at Mankhurd Transit Camp as temporary accommodation by the 2 nd Respondent. The Petitioner started residing in the said accommodation. He was paying regularly the electricity bill as well as rent. The Petitioner was not able to stay in the said transit camp at Mankurd for his personal reasons. Therefore, he requested the 2nd Respondent to transfer the allotment from Mankurd Transit Camp to Bandra Transit Camp. He was directed to surrender the accommodation at the Mankurd transit camp and accordingly, he surrendered the possession on 4th October 1988. A certificate by the rent

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controller of the 2nd Respondent came to be issued in respect of acceptance of the possession. The Petitioner was allotted transit camp accommodation in Chawl No.18 Room No. 140, at Bandra Reclamation, Bombay. Since then he is residing at the said place. He is paying the rent for the said accommodation.

3] It has been further contended by the Petitioner that he is entitled to the allotment of a premises in the reconstructed building. He was repeatedly requesting the officers of the 2 nd Respondent to allot the alternate accommodation in lieu of the old tenement. The officers of 2 nd Respondent prepared a list some were around June 1991 in respect of tenants of various premises including the building at 82-92, Bara Imam Road. The name of the Petitioner appeared in the said list at serial No.17. The Petitioner learnt that 2 nd Respondent has reconstructed the building in place of old building at 82-92, Bara Imam Road. Therefore, he approached the 2nd Respondent for the purpose of allotment of a tenement in the said reconstructed building. The 2nd Respondent had then called upon the Petitioner to submit all the relevant documents in respect of the old tenement. The Petitioner had accordingly, submitted all the papers some were in the month of June 1994. However, he has misplaced and / lost the acknowledgment receipt of submitting the documents to 2nd Respondent. In spite of repeated requests and reminders given by the Petitioner, he has not been allotted any permanent alternate accommodation. No reply has been given by the 2 nd Respondent on his application. He had approached the Chief Officer of 2nd Respondent. The Chief Officer informed him to put the facts in writing and therefore, he submitted a letter on 4 th January 1995. All formalities have been complied with, yet, the Petitioner's file is pending for the allotment of reconstructed premises. He has also issued a letter

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through Advocate on 3rd February 1995 calling upon the 2 nd Respondent and the 3rd Respondent to allot and handover the possession of a room in the reconstructed building in lieu of old tenement. He is residing in transit camp accommodation since 1979. Even the 1 st Respondent has issued a circular and directed 2nd Respondent that all the tenants of old building, who are residing in the transit camp prior to 1985, should be given allotment in the reconstructed building at the earliest. Once again the petitioner had issued a reminder through his Advocate on 21 st March 1995. There is no response from the 2 nd Respondent. The Petitioner has come to know that the 2nd Respondent has even allotted tenements to the tenants who were not the original tenants of the old building. Thereby, the Petitioner has been discriminated. Now there is a vacant room bearing Room No. 61 in the reconstructed building at A-1, Maniar, Tardeo, Bombay. The Petitioner is entitled to get the said room. He has, therefore, prayed for the allotment of the said room to him. In the alternative, he has prayed for allotment of an area equivalent to the old tenement in lieu of room No. 16 at Bawla Building, 82-92, Bara Imam Road, Bombay.

4] Heard the learned counsel appearing for the Petitioner and learned AGP for 1st Respondent. None appeared for the 2 nd and 3rd Respondent when the matter was called out for final hearing. The learned counsel appearing for the Petitioner has reiterated the facts narrated in the petition and had taken us through the correspondence that was made by the Petitioner with the 2 nd Respondent. He submitted that there is no dispute regarding the fact that the Petitioner is an old tenant in the building that was redeveloped by the 2 nd Respondent. The 2nd Respondent had asked the Petitioner to vacate the premises and accordingly, the Petitioner had handed over the possession. He was

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accommodated in the transit camp after the building was reconstructed, the Petitioner has not been allotted an equivalent area in the reconstructed building. Therefore, the demand of the Petitioner is justified.

5] The Petitioner has produced on record a copy of notice dated 30th May 1979 issued by the 2nd Respondent to him. It shows that Petitioner was called upon to vacate the premises within 7 days, as he was a tenant in respect of Room No. 16 of 1 st Floor in 82-92, Bara Imam Road, Bombay. He has also produced a copy of the rent receipt issued by the Estate Manager on 28th June 1979. Exh. E dated 4 th October 1988 contains the particulars of accommodation occupied by Petitioner. These documents show that Petitioner was given transit accommodation at Mankurd. Thereafter, he was shifted to Bandra Transit Camp and he has paid rent vide Exh. F. Even the list of tenants in respect of the old building, the name of the petitioner appear at serial No. 17. It can be safely stated that the Petitioner was directed to vacate the premises as the 2nd Respondent intended to demolish the old building and reconstruct the same. Under such circumstances, he was entitled to have an area equivalent to his tenement in the newly constructed building. The other exhibits produced by the Petitioner show that he was repeatedly requesting the 2nd Respondent to allot him the alternate permanent accommodation.

6] It is not disputed for the 2nd Respondent that Room No. 61 in the reconstructed building A-1, Maniar, Tardeo Bombay is presently vacant. Therefore it would be open for the 2 nd Respondent to allot the same to the Petitioner, if the area of the same is equivalent to the area of the old tenement which was occupied by the Petitioner. The area of the said room has not been brought on record by the Petitioner. The

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documents on record produced by the Petitioner clearly show that he is entitled to the allotment of an accommodation in the reconstructed building and therefore, the petition deserves to be allowed. We therefore proceed to pass the following order:-

ORDER

(a) The 2nd and 3rd Respondents shall consider the request of the Petitioner to allot him, Room No.61 building No. A-1, Maniar, Tardeo, Bombay, if the area of the said room is equivalent to the area of the tenement occupied by the Petitioner in the old tenement;

(b) If the area of the said room is not equivalent then the 2 nd and 3rd Respondent shall allot an area equivalent to the old tenement in the reconstructed building to the Petitioner;

(c) The aforesaid action shall be taken by the 2 nd and 3rd Respondents within a period of two months from the date on which an authenticated copy of this judgment and order is served in the office of the 2nd Respondent;

(d) After the allotment of such room to the Petitioner be put in possession of the same within the aforesaid period;

(e) With these directions, the Rule issued Writ Petition is made absolute with no order as to costs.

(SMT. VIBHA KANKANWADI, J)                                              (A. S. OKA, J)